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Wednesday, February 15, 2017

Accelerated Justice Is Problematic on Appeal

Workers' Compensation matters were intended by the legislature to be summary and remedial actions. Accelerated justice does have its consequences on appeal, and should be implemented prudently.

In an effort to move case dockets at a quicker pace, New Jersey implemented an accelerated award procedure, "a trial on reports," that allowed for the disposition of cases at the pre-trial conference stage. It was to be utilized either by the consent of the parties where the only issue presented was the nature and extend of permanent disability. "If the parties waive all issues except the nature and extent of disability and if the right of cross-examination has not been or is not asserted, then a judge of compensation may enter a judgment as to the nature and extent of disability at the time of the pre-trial conference." Jon Gelman, Workers Compensation Law, 39 NJ Practice Series 25.4.

One of the adverse consequences of such a proceeding is a very limited record on review. Litigation usually provides the opportunity of cross-examination. The use of an "trial on reports" results in the waiver of the opportunity to cross-examine medical exports.

In a recent unreported case, the Appellate Court reviewing the record below on a "trial on reports," was limited to the record below, petitioner's testimony, petitioner's medical reports and the parties' expert reports. On appeal, the petitioner appeared, pro se. The decision below was affirmed.

The Court opined, "We have considered petitioner's arguments in light of the hearing record, including the documentary exhibits, and applicable legal principles. Our review leads us to conclude the judge of compensation's decision is supported by sufficient credible evidence on the record as a whole. Petitioner's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E)." Sondhi v Tropicana Hotel and Casino, DOCKET NO. A-0574-15T1, 2017 WL 563311 (NJ App Div 2017) Decided 2/13/17.

Many other jurisdictions provide the opportunity to take the depositions of the medical experts and to utilize the transcripts as evidence at the time of the trial. Perhaps, while the rules permit their use in NJ, such evidence should be a key factor in preparation of a case for trial, even if the only issue is merely "the nature and extent of permanent disability."

Note this is an unreported decision: "This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3."